June 27, 2008
Last week, the Department of Justice published proposed regulations that could significantly alter the obligations of movie theaters, retailers, and other places of "public accommodation" under the Americans with Disabilities Act ("ADA"). The 60-day comment period closes August 18. 73 Fed. Reg. 34508, 34509.
In addition to the rights it provides employees, the ADA requires that places of public accommodation not discriminate against individuals with disabilities; make reasonable modifications to policies, practices, and procedures when necessary; effectively communicate with people with vision, hearing, and speech difficulties; and remove physical barriers to access to existing facilities when feasible. New construction must comply with a set of detailed "accessibility" rules.
The Department of Justice’s proposed rule would be the first significant revisions to the regulations delineating these obligations since the public accommodation regulations were first issued in 1991. Requirements under the proposed rule include the following:
"Service animals." Under the current regulations, a public accommodation must permit individuals with disabilities to be accompanied by a "service animal"–an animal specially trained to perform certain tasks (e.g., a seeing eye dog). The proposed rule states that service animals include only domestic animals, and not–as some had argued–primates, small horses, and reptiles. The proposal also confirms that service animals may be excluded when they are "out of control," are not housebroken, or pose a direct threat to others; the proposal takes issue with a Ninth Circuit decision that held it violated the ADA to exclude a barking dog from a theater. Lentini v. Cal. Ctr. for the Arts, Escondido, 370 F.3d 837 (9th Cir. 2004).
Ticketing. Under the proposed rule, places of public accommodation that require a ticket for admission–movie theaters, ballparks, etc.–must make tickets available on the same basis for individuals with disabilities as for all other patrons. For example, tickets for wheelchair-accessible seating must be offered in the same locations (e.g., on the phone, at the window, and via the Internet), and at the same time as regular seating. The facility may not "steer" individuals with disabilities to one section, and handicapped seating areas may not be released to the general population until all other comparable seats have been sold.
Seating. A number of lawsuits have been filed over handicapped seating in movie theaters and other public accommodations. The proposed rule would require that each wheelchair seat have companion seating nearby, up to 3 companion seats per wheelchair seat in some instances. The handicapped seating must have viewing angles as good or better than the average view. If there are special seating areas (e.g., luxury boxes), wheelchair and companion seats must be provided in each such area. In movie theaters, wheelchair seating spaces and companion seating must be in the stadium section, and may not be in the front 40% of the theater.
Golf courses. Golf courses would have to ensure that an "accessible (pedestrian) route . . . connects all accessible elements within the boundary of the golf course and facility, including teeing grounds, putting greens, and weather shelters." In its proposed rule, the Department says that it expects that "virtually every tee and putting green on an existing course will need to be regraded" to meet this requirement. Having an existing cart path that connects these elements has been deemed to constitute sufficient compliance, however.
Assistive devices. As part of the ADA’s requirements to communicate effectively with those with speech, hearing, and visual impairments, public accommodations employ a variety of devices–such as amplifying headsets or PDAs that display captions–to aid the hearing impaired. The proposed rule may expand these requirements, due in large part to advancing technology. For example, captioning of movies historically has not been required in theaters because it has been considered technologically infeasible. The ubiquity of mobile wireless devices may mean that providing "closed" captioning (captions delivered only to the disabled individual, e.g., through the wireless device) is now feasible, and new digital projection technology may make adding "open" captioning (captions displayed on the screen like subtitles), which previously required separate reels of film for captioned and non-captioned versions, a reasonable modification. Similarly, narrative descriptions of visual events for those who have low vision may be required.
Other power-driven mobility devices. Because these non-wheelchair devices (e.g., Segways) can help the disabled achieve mobility, they cannot be completely banned unless they would fundamentally alter the goods or services provided by the public accommodation.
The Department’s proposed rule would also incorporate 2004 architectural guidelines promulgated by the federal "Access Board." The Access Board’s mandate extends only to new construction and alterations (e.g., renovation of the interior of a building). Existing facilities are currently expected to comply with the 1991 architectural guidelines, to the extent that it is "readily achievable" to do so. Under the proposed rule, existing facilities would have to determine whether it is readily achievable to comply with the more stringent 2004 standards and, if so, engage in architectural modifications. However, because application of the more stringent 2004 standards may cause hardship on existing facilities, the Department has provided several safe harbors in the proposed rule. The Department may also ask the Access Board to reconsider certain guidelines if their application is particularly problematic, but does not intend to make any unilateral changes to the guidelines themselves.
Gibson, Dunn & Crutcher’s Labor and Employment Practice Group is available to assist with any questions you may have regarding these issues. For further information, please contact the Gibson Dunn attorney with whom you work or Practice Group Co-Chair Eugene Scalia (202-955-8206, [email protected]) or John C. Cook (202-887-3665, [email protected]) in the firm’s Washington, D.C. office.
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